I respectfully dissent from the majority opinion since I believe not only that the trial court's order is fundamentally flawed but that the record of this case demonstrates the trial court committed plain error in several respects.
First, despite the majority opinion's lengthy justification for the trial court's order, the trial court's judgment entry cannot, as a matter of law, be considered to be a disposition that is in the best interests of the child because it has the effect of leaving Rhonda in limbo with regard to parental rights. The relevant portion of the entry states:
It is therefore ordered that the motion of the intervenor for an order terminating parental rights and for legal custody is well taken and is granted. It is ordered that the parental rights of Sue Ping Chen and Xin Lian Zhang and all putative fathers are hereby permanently terminated. It is further ordered that child herein is committed to the legal custody of the intervenor, Laura R. Hong. It is further ordered that the motion for permanent custody filed by the guardian ad litem is denied as moot. It is further ordered that the motion of the Cuyahoga County Department of Children Services for termination of custody is granted in part, the order previously entered in this matter granting the said department temporary custody is terminated. In so far as said motion prays for custody to be vested in the mother, said motion is denied.
(Emphasis added.)
It is obvious from the foregoing that the trial court, although it terminated the mother's parental rights, failed to vest those rights in any other party. This court previously has refused to permit such a result since it has the effect of both placing the juvenile court in the position of the child's parent and placing the child in a "temporary arrangement which conceivably could last until the child is emancipated." In re Hitchcock(1996),120 Ohio App.3d 88, 102-103.
Such a result was obtained in this case because the trial court committed plain error in two additional respects: (1) it refused to honor the mother's fundamental constitutional right to counsel at the termination of the parental rights trial; and (2) it not only permitted appellee to intervene in the case, it considered her *Page 362 motions even though, pursuant to the statutory scheme, they are completely unauthorized. The majority opinion now sanctions those errors without a sufficient consideration of the consequences of its decision.
In reviewing appellant's first assignment of error, this court has the duty to be mindful that because a parent's right to the companionship, custody and management of his or her children is viewed by the United States Supreme Court as a fundamental interest that "undeniably warrants * * * protection," it follows that "[a] parent's interest in the accuracy and justice of the decision to terminate his or her parental status is, therefore, a commanding one." Lassiter v. Dept. of Soc. Serv. of Durham Cty. (1981), 452 U.S. 18 at 27 (emphasis added); see, also, Santoskyv. Kramer(1982), 455 US. 745 at 753.
Indeed, the matter is of such a nature that this court has declared "the termination of parents' rights is the family law equivalent of the death penalty in a criminal case." In reHitchcock, supra.
The majority opinion first justifies the resolution of appellant's first assignment of error by essentially declaring the mother's actions indicated she "voluntarily" waived her right to counsel. However, the United States Supreme Court has held that before a defendant in a capital case voluntarily may waive his or her right to counsel, he or she must be "competent" to do so. Godinez v. Moran(1993), 509 U.S. 389. Ohio law, moreover, asGodinez permits, has established, especially in termination of parental rights cases, a more stringent standard than the Federal Constitution mandates for determining the requirement for counsel. See, Asberry v. Payne(1998), 82 Ohio St.3d 44; State exrel. Heller v. Miller(1980), 61 Ohio St.2d 6, 14; In reHitchcock, supra; McKinney v. McClure(1995), 102 Ohio App.3d 165; In re Kriak (1986), 30 Ohio App.3d 83; R.C. 2151.352.
The trial court in this case made no finding the mother was now "competent" prior to either its decision to permit her counsel to withdraw at the outset of the termination of parental rights trial or its decision to deny appellant's motion to appoint new counsel. Cf., State v. Allen(Nov. 20, 1997), Franklin App. No. 97APA01-51, unreported. Since this trial was, in effect, a "death penalty" trial for the mother's family, it was the duty of the trial court to assign counsel for the mother under such circumstances for a court is required to "indulge everyreasonable presumption against the waiver of a fundamental constitutional right including the right to be represented by counsel." State v. Fields(July 6, 1998), Warren App. Nos. *Page 363 CA97-09-100, CA97-09-101, CA97-11-118, unreported, citing Statev. Dyer(1996), 117 Ohio App.3d 92, 96. (Emphasis added.)1
Moreover, this court previously has recognized that a waiver of the right to counsel may not be presumed by a trial court when, as in this case, a party has demonstrated an "inability * * * to effectively articulate his defense pro se * * *." In re:Justin Gardener, a Minor(June 18, 1998), Cuyahoga App. No. 72642, unreported, at 5. To state otherwise in the majority opinion now sends an opposite message to the trial court, which it may find difficult to reconcile with the earlier opinion.
The majority opinion additionally states the mother's right somehow was forfeited when her original counsel advised the court that she could not "zealously represent her client." In the context of the record, however, the mother's original counsel's statement more properly is viewed as just another instance of her overall ineffectiveness than as an excuse to deny a client her fundamental right.
For example, original counsel never raised the issue of the applicability of R.C. 2153.353(F), the "sunset date," prior to the trial; rather, the termination by operation of law of the agency's temporary custody of Rhonda had been raised only by the child's guardian ad litem. The trial court's subsequent assertion of its jurisdiction despite the questionable circumstances,2 moreover, never was challenged by original counsel. See, In reYoung Children(1996), 76 Ohio St.3d 632.
Additionally, despite the plain terms of R.C. 2153.415(A). which provides that only an agency may file such motions, at no time prior to her withdrawal did the mother's original counsel move to strike appellee's motions to terminate parental rights and to confer legal custody. *Page 364
Most importantly, original counsel simply withdrew at the critical juncture of the proceedings. She neither gave notice of her intention nor, although she was ethically required to do so, requested the trial court to appoint new counsel for her client. EC 2-31; DR 2-110(A)(2). Original counsel failed even to request a continuance. For this reason, the majority opinion's reliance upon State v. Unger(1981), 67 Ohio St.2d 65, is misplaced.
Any sympathy with original counsel's stated reason for her withdrawal similarly is inappropriate. Attorneys who represent mentally challenged clients must be prepared for some difficulties in communication in even the best of legal situations; they cannot be permitted easily to walk away from their responsibilities in intricate situations. Indeed, not knowing his or her wishes is usually a problem with this type of client; protecting his or her due process rights and fair trial rights through the challenging of improper evidence often is as much as counsel can do in such cases.
In this case, permitting the mother's original counsel simply to withdraw at the very outset of the trial was a particularly cruel blow in view of the following: (1) the trial court decided to consider at that same hearing several issues, including the appellee's improper motions for both the termination of the mother's parental rights and for legal custody of Rhonda; (2) appellee, by and through the three attorneys representing her interests, had previously filed not only numerous subpoenas seeking all of the mother's medical and personal records, even the most dated, but also a motion in limine seeking to prevent the mother, an indigent citizen of another country, from presenting any evidence at the hearing; and (3) appellee, having been given party status by the trial court, had assembled a veritable "dream team" of excellent attorneys, who were well-schooled in the nuances of juvenile law. Opposing them was an "incompetent," indigent and absent mother of another culture who "suffers from a chronic mental illness," according to the trial judge, and who, as a result of original counsel's inaction, had been ineffectively represented by counsel during the preliminary stages of the matter and ultimately was without any legal representation whatsoever at the critical trial stage. While three versus one at trial arguably would have done only minor damage to our adversarial approach to justice, three versus none was a flagrant denial of fundamental constitutional rights.Powell v. Alabama(1932), 287 U.S. 45.
Although the majority opinion finally justifies its resolution of the first assignment of error by stating the Juvenile Rules "authorized" appellant "to serve as" the mother's counsel, a review of the record demonstrates the trial court neitherappointed appellant to serve in that capacity nor gave appellant time to prepare to serve in that capacity. Appellant's limited presence at the trial, therefore, could hardly suffice to comply with constitutional due process requirements. In *Page 365 re Baby Girl Baxter(1985). 17 Ohio St.3d 229, 232; cf., In the Matter of Merrick(Feb. 11, 1998), Athens App. No. 97CA31, unreported.
The effect of the trial court's refusal to grant the mother her right to counsel is manifest both from a review of the transcript of the trial and from the majority opinion's resolution of this appeal.
Due to the importance of the potential "penalty" involved, Juv.R. 34 (I) requires the trial court to apply the Rules of Evidence at permanent custody hearings; however, because the trial court in this case considered all of the motions at once, appellee, who was essentially unopposed, was permitted to circumvent the rule's mandate in many ways. The trial's failure to comply with the mandate of Juv.R. 34 (I) greatly prejudiced the mother since it is upon mostly incompetent and inadmissible evidence3 that the trial court based its decision to terminated the mother's parental rights and now, by extension, the majority opinion affirms that decision.
Any perusal of appellee's part in the proceedings below amply demonstrates the second impropriety committed by the trial court,viz, that of considering appellee's motions in the first place. In doing so, it completely ignored the plain language of R.C. 2153.415(A).
By its terms, R.C. 2153.415(A) permits only a "public children services agency or private child placing agency" to file a motion for disposition. The trial court, therefore, committed plain error. See, Goldfuss v. Davidson(1997), 79 Ohio St.3d 116, 122. As a matter of law, it could not entertain the motions to terminate parental rights and a motion to award legal custody since they had been filed by an intervening foster parent and by a party other than the children's services agency; thus, it could not conduct a trial on those issues.
The statutory scheme with regard to dependent children has as its basis the welfare of the child. As this court recognized inState v. Hitchcock, supra, the state has an interest in finding a supportive, protective and permanent family environment for the child. In light of that decision, this court should not endorse a juvenile court's ill-considered policy that would permit foster parents to bypass the statutory scheme to secure permanency for Ohio's dependent children. The unintended consequence of the majority opinion's affirmance is to enable childless *Page 366 couples with sufficient financial or legal resources to pursue "trial adoption." The couple would choose a child whose parents were in some difficulty, encourage the parents to agree to agency custody of the child, foster the child to determine if he or she is intelligent and fairly well-adjusted, and then petition the juvenile court to both terminate parental rights and grant legal custody so that, subsequently, the probate court would have little-discretion but to permit adoption by the couple. Cf., Inre Hitchcock, supra.4
This result is not only unfair to childless couples who patiently wait for years for a child such as Rhonda to be available for adoption but, more importantly, it is inimical to the best interest of Ohio's children and, therefore, Ohio law to limit the "pool" of prospective adoptive parents to one couple at the outset of the state's involvement in a child's life.
Additionally, in allowing appellee to assume the status in this case that she did, the trial court failed to recognize there is an inherent conflict in the roles appellee took upon herself,viz., that of both a foster parent and also an intervenor seeking not only termination of parental rights but an award of legal custody of the child. In the Matter of Rose(May 21, 1992), Cuyahoga App. No. 62493, unreported; In re Ring(June 28, 1994), Franklin App. No. 93APF-12-1693, unreported.
Foster parents are not required to be afforded party status.Id; see, also, In re Franklin(1993), 88 Ohio App.3d 277; In theMatter of Winkle(Mar. 31, 1997), Butler App. No. CA96-11-236, unreported; In re Matter of Rundio(Sept. 8, 1993), Pickaway App. No. 92CA135, unreported. It has been the practice to permit foster parents to intervene only in order to aid the trial court in the full development of relevant evidence. In re Parsons(May 29, 1996), Lucas App. No. 95CA006217, unreported.
In this case, however, the inherent conflict in appellee's roles led to the confusion of many issues, the admission of improper evidence at the trial, and a result that is completely at odds with the statutory framework. It is for this reason that R.C. 2153.415(A) does not provide that a foster parent may file a motion either for termination of parental rights or for legal custody. The majority opinions s endorsement of the trial court's error is not only unfortunate but is fundamentally wrong. *Page 367
For the foregoing reasons, I would sustain all of appellant's assignments of error, reverse the trial court's order in its entirety, restore both the mother's parental rights and the agency's temporary custody, and remand this case for further proceedings in accordance with Ohio law.
1 Fields made this declaration of law in a case involving nothing more than violations of municipal ordinances; it certainly applies no less to cases involving the termination of a parent's rights to the supervision and companionship of her only child.
2 Of course, the trial court retained subject matter jurisdiction; however, if the child's guardian ad litem was correct when he asserted in his motion that the agency's custody by operation of law was to terminate on June 25, 1996, then no legal restraint prevented the mother from establishing China as the lawful residence for herself and her child. It follows the trial court clearly was without authority to terminate her parental rights and award legal custody of her child to another. Beyond this, the original case thus was closed with a final order, viz., the termination of custody by operation of law, from which, incidentally, no appeal ever was filed. Thereafter, the case could not be reopened simply by motions filed by appellee and the child's guardian ad litem: no new complaint was filed. Competent counsel should have explored these issues and challenged both the motions and the trial court's subsequent orders as nullities.
3 Most of the evidence was introduced during the testimony of the agency social worker assigned to Rhonda's case. She testified from various documents neither that she could authenticate nor of which she could claim any personal knowledge, e.g., notes of the previous social worker, letters from the mother's former attorney, police reports, and doctors' diagnoses of the mother.
4 In this context, it should be noted that the majority opinion does not address the fact that although the only competent expert testimony on the mother's fitness to parent was equivocal, appellee never was evaluated concerning her fitness to parent. Therefore, understandably, it avoids actually stating the trial court's award of legal custody of the child to appellee was "in the best interest of the child."